P L D 1966 (W (PLP)

3. The petitioners allegations are that one Dirk Van Spenkeren was the previous, Manager of the Westrex Co. East. While he held that appointment, he misappropriated large sums of money of the firm and also fabricated firm's accounts to cover up his defalcations. The two detcnus were instrumental in the discovery of misappropriation , of money and fabrication of accounts by Spenkeren and his removal from the managerial post. Hussain Ali Chagla was then appointed the Manager and in that capacity he tiled criminal complaints against Spankeren under sections 408, 409, 467 and 477‑A, P. P. C., in the Court of Ch. Muhammad Zar, Magistrate 1st Class, Lahore. It is alleged that Spankeren has intimate social relations with the Inspector‑General of Police, West Pakistan, who is out to protect him and thereby to interfere with the course of justice. Fearing that, Hussain Ali Chagla moved Criminal Miscellaneous No. 372 of 1965, in the High Court, for the transfer of the criminal cases against Spankeren from the Court of the Magistrate Ist Class to the High Court's extraordinary original criminal jurisdiction. A copy of the petition (Cr. M. No. 372;'65) is Annexurc `A' to Writ Petition No. 1950 of 1965. It contained serious allegations against the Inspector‑General, Police; it was also alleged that because of his intimate relations with Spankeren, the Inspector‑General is out to protect him by trying to influence the Magistrate. The application was granted and the cases were transferred to the High Court. It is alleged that the filing of the Criminal cases against Spankeren and their transfer to the High Court as a result of serious allegations made against the Inspector‑General, Police, is the beginning of the troubles against the two detenus. A complaint under section 9 of the Foreign Exchange Regulation Act, 1946, was lodged against the firm and Hussain All Chagla, to bring indirect pressure for the withdrawal of the criminal cases against Spankeren. Apprehending his arrest in that case, Hussain Ali Chagla, moved Criminal Miscellaneous No. 1043 of 1965, in the High Court for bail before arrest which was granted. And thus the efforts of the police at the behest of its chief to bring indirect pressure for the withdrawal of cases were frustrated till the declaration of Emergency in the country. It is alleged that the police taking undue advantage of the Emergency in the country, has made false and malicious report against the two detenus and hoodwinked the District Magistrate into making the two impugned orders of detention which are characterised as mala fide, and illegal. The competency of the District Magistrate to make the impuged orders was also questioned.

4. No written statement was tiled on behalf of the State the District Magistrate in his brief affidavit filed in each case stated that on the basis of the material placed before him, he had satisfied himself that the detention of the two detenus was necessary within the meaning of rule 32 of the Defence of Pakistan Rules and that he was not misled by any police report.

5. At the commencement of the hearing of the case, Mr. Ata Ullah Sajjad, learned Additional Advocate‑General, appearing for the State, raised a preliminary objection that section 16(1) of the Defence of Pakistan Ordinance completely bars the jurisdiction of the High Court to hear the two writ petitions. In support of his argument, the learned Additional Advocate‑General relied upon the following extract in the head‑note of the recent judgment of the Supreme Court in Muhammad Khan v. The Border Allotment Committee (P L D 1965 S C 623):‑ "The Border Area Regulation, is a Regulation which has been preserved by clause (4) of Article 225 of the Constitution and it now enjoys the status of an Act of the Central Legislature. Now an Act of the Central Legislature can take away the jurisdiction of the High Court and even of the Supreme Court by reason of the provisions of Article 130 of the Constitution, which clearly provides that no Court shall have any jurisdiction that is not conferred upon it by the Constitution or by or under the law. Thus since the Border Area Regulation now has the effect of an Act of the Central Legislature, it is a valid piece of legislation by a competent Legislature and if it has taken away the jurisdiction of the High Court and the Supreme Court to call in question any order made or direction issued under the said Regulation, that protection must prevail and an order passed on the 25th August 1960 will not be open to challenge even now. The Regulation takes away the jurisdiction of the High Court and the Supreme Court not only to call in question the validity of any order made or direction issued there under but also of any provision of the said Regulation." On the basis of the above dictum of their Lordships, it was urged that section 16(1) of the Ordinance operates as a complete bar to any challenge to all orders made under the Defence of Pakistan Rules including any order of detention under rule 32.

6. At first sight the above extract from the head‑note appears to lend support to the contention of the learned Additional Advocate‑General but on a closer examination of the precedent case, the contention appears to be without substance. The essential facts of the precedent case are these: The appellant before their Lordships, Muhammad Khan, was a refugee from India, who had settled in village Chakrali, within the "Border belt" in the district of Sheikhupura, where he was allotted 15 acres of land besides certain lands located elsewhere in the same district. On the 25th of August 1960, the Border Allotment Committee of Narang, constituted under Martial Law Regulation No. 9 of 1959, ordered him under paragraph 6 thereof, to remove himself from the Border Belt within a fortnight of the receipt of the order and to surrender all the immovable property within the Border Belt of which he was the owner or was otherwise in possession or control in any capacity, whatever. Muhammad Khan filed a writ petition in the High Court complaining that the above order of the Border Allotment Committee was mala fide. In support of that plea, he referred to certain civil litigation between him and one Mst. Razia Begum, wife of the younger brother of the then Martial Law Administrator for Zone `B' at Lahore, in which Muhammad Khan emerged successful. It was suggested that under the influence of the Martial Law Administrator, Zone B', the above order was made by the Border Allotment Committee. In pursuance of that order, Muhammad Khan was forced to surrender 15 acres of land in village Chakrali. However, the order was not given Hussain effect to as respects other areas allotted to him else where within the Border Belt. A Full Bench of the High Court held that the order of the Border Allotment Committee was fully protected from any challenge under Article 98 of the Constitution and, therefore, the writ petition filed by Muhammad Khan was dismissed. An appeal by special leave to the Supreme Court was also dismissed. Their Lordships took the view that the order of the Border Allotment Committee was passed during the Martial Law Regime, namely, on the 25th of August 1960 and was fully protected by Martial Law Regulations Nos. 88 and 93 which gave complete protection to anything "done, expressed or purported to be done or to have been done by any Martial Law Authority in pursuance of any Martial Law Regulation or Martial Law order" during Martial Law period. Regulations Nos. 88 and 93 were made by the Chief Martial Law Administrator himself and, therefore, according to Article 4(1) of the Laws (Continuance in Force) Order, 1958, prevailed over all existing laws and even the Constitution. Therefore, there could be no doubt that so long as Martial Law Regulations Nos. 88 and 93 remained operative, no Court including High Courts and the Supreme Court could question anything done by any Martial Law Authority, "whether that Authority acted with or without jurisdiction in the matter". Their Lordships also went on to consider, whether the protection afforded by Martial Law Regulations Nos. 88 and 93 is still available to protect the impugned order of the Border Allotment Committee after the commencement of the Constitution which, inter alia, repealed Martial Law Regulations Nos. 88 and 93 but which nevertheless preserved in force vide Article 225, Martial Law Regulation No. 9 of 1959 under which the Border Allotment Committee was established and exercised its powers. Their Lordships invoked the dictum of "past and close transaction" and held that order dated the 25th of August 1960, in so far as it concerned the 15 acres of land in village Chakrali, which had already been resumed, was fully and finally protected and it was not open to any attack in any Court including the High Court and the Supreme Court. In this view of the matter, their Lordships did not feel called upon to decide whether the order of the Border Allotment Committee was mala fide, the main ground on which it was assailed. There is, however, a significant observation in the judgment at page 629 of the report which in our opinion is a clear pointer how far the West Pakistan Border Area Regulation 1959 now having the force of a Central Statute would avail to protect the order of the 25th August 1960: "If the properties other than the Chakrali properties which were directed to be surrendered have not yet been resumed, it cannot, in our opinion, be said that the order itself has become a past and closed transaction, for, action under it may still be taken and the lands resumed. If the impugned order is not otherwise protected from challenge, any future action taken in pursuance of that order will not also be immune from challenge." From these observations it becomes manifest, that their Lordships dictum relied upon by the learned Additional Advocate‑General must be understood as confined to tile lads of that case, namely, that the order of the 25th August 1960 in so far as it was given effect to as respects 15 acres of land in village Chakrali, before the commencement of the Constitution, was immune from any attack in Courts. However, the same immunity will not avail to protect the order in so far as it was not given effect to prior to the Constitution notwithstanding the fact that West Pakistan Border Area Regulation No. 9 of 1959 takes effect as an Act of the Central Legislature as from the commencement of the Constitution. As already explained, the reasons for such a differentiation is, that prier to the commencement of the Constitution Martial Law Regulations Nos. 88 and 93 which afforded protection to the orders of the Border Allotment Committee held the field. Now these two protective Regulations stand repealed under Article 225(3) of the Constitution and, therefore, blanket protection is no longer available except with regard to a "past and closed transaction" vide Article 250 of the Constitution.

7. On the above analysis of the ratio decidendi in Muhammad Khan v. Border Allotment Committee, we are firmly of the view that the Supreme Court's judgment, cannot read as laying a general proposition, that a Central Statute can override the provisions of the Constitution or for that matter exclude, abridge or otherwise curtail the High Court's jurisdiction under Article 98 of the Constitution. For the same reasons, it would be wrong to think that their Lordships decision in ‑ Muhammad Khan's case reversed their earlier dictum in Syed Abdur Rashid v. Pakistan (P L D 1962 S C 42), which, inter alia, involved the interpretation of section 12 of the Registration of Claims (Displaced Persons) Act, 1956, which similarly excluded the jurisdiction of Civil Courts to entertain disputes in respect of any matters which the Claims Commissioner or the Additional Claims Commissioner, etc. is empowered by or under that Act to determine. It was held that the section did not operate to take away the jurisdiction of the High Court to issue an appropriate writ to the Claims Authorities under the said Act. According to their Lordships, such a contention "is wholly untenable". In our opinion, the authority of this decision remains unshaken. This view finds support in the separate concurring judgment of Kaikaus, J., in Muhammad Khan's case and is further confirmed by their Lordships decision in a more recent case of Mian Jamal Shah v. The Member, Election Commission (P L D 1966 S C 1). That was an appeal concerning a dispute arising out of election to the National Assembly, which is expressly excluded from the purview of the Courts, by section 112 of the National and Provincial Assemblies (Election) Act, 1964 and Article 171 of the Constitution. While accepting the appeal against the judgment of a Full Bench of the High Court of West Pakistan (which had earlier in a writ petition under Article 98 of the Constitution, set aside the order of the learned Member of Election Commission) on the ground that the matter falls outside the purview of the writ jurisdiction of the High Court, all the five learned Judges in their separate judgments made express reservations that the High Court's jurisdiction under Article 98 of the Constitution can be invoked in election disputes where the Election Tribunal, Election Commission or for that matter its member or the Chief Election Commissioner were to act mala fide without jurisdiction or in excess of jurisdiction. Therefore, the provisions of Article 171 or of section 112 of the National and Provincial Assemblies Act, will not be a bar to the High Courts jurisdiction under Article 98 of the Constitution to hear disputes concerning election matters, if the order complained of is mala fide or without jurisdiction or in excess of jurisdiction. This virtually re‑affirms the earlier dictum of their Lordships in the case of Syed Abdur Rashid.

8. Lal Khan v. Crown (P L D 1955 Lah. 215), can also be cited with advantage in support of the above conclusion. That case involved the interpretation of the combined effect of section 10(1) of the Restriction and Detention Ordinance, 1944, which had expressly to ken away the jurisdiction of the High Courts to make orders under section 491 of the Code of Criminal Procedure "in respect of any order made under or having the effect under the Ordinance", and section 223‑A of the Government of India Act, 193 5, which conferred writ jurisdiction on the High Courts in the country for the first time. S. A. Rahman, C. J. (as he then was) relying on "the well settled proposition that an Act which contained a provision which offended against the Constitutional Provisions, would be ultra vires," gave full effect to the argument, that any repugnancy between the Constitutional provisions and the provisions of any sub‑Constitutional law would have to be resolved in favour of the Constitutional Provision. His Lordship observed: "The limiting provisions of section 10 of the Ordinance that existed at the time of the enactment of section 223‑A of the Constitution Act, in so far as they are repugnant to section 223‑A stand abrogated and can no loner be given effect to." This view of the law was also affirmed in a latter Full Bench case, Haji Mehrban Ahmad v. Commissioner, Rawalpindi (P L D 1955 Lah. 263).

9. Upon the above review of the authorities, we are firmly of the view that the limiting provisions of section 16(1) of the Defence of Pakistan Ordinance cannot in any manner be construed to exclude or curtail the writ jurisdiction of the High Courts under Article 98 of the Constitution and the High Courts will step into grant redress if any order purporting to be under the Ordinance or the Rules framed there under transgresses any provision of law or is otherwise mala fide. This disposes of the preliminary objection on behalf of State.

10. On the merits of the case, Mr. Mahmud Ali Qasuri, learned counsel for the petitioners raised the following two contentions, namely:‑ (i) that the impugned orders are mala fide; and (ii) that there is no credible evidence of proof of the factum of satisfaction of the detaining authority, which is a condition precedent for the making of the impugned orders.

11. In support of the ‑first plea, the petitioners learned counsel strongly relied upon the allegations concerning the conduct of the Inspector‑General, Police, vis‑a‑vis his relations with Spankeren, referred to in the earlier part of this order. It was not denied on behalf of the State that Spankeren who was once the Manager of Westrex Co. East, was removed from his managerial job and replaced by Hussain Ali Chagla, or that the latter is prosecuting criminal cases against the former. Nor was it denied that Criminal Miscellaneous No. 372 of 1965, by Hussain Ali Chagla levelled serious allegations against the Inspector‑General, Police, regarding the criminal cases against Spankeren as a result of which these cases were transferred for trial to the High Court; nor that on a police report, a case under section 9 of the Foreign Exchange Regulation Act, was registered against Hussain Ali Chagla, in which he was granted bail before arrest in Criminal Miscellaneous No. 1043 of 1965, on practically the same allegations as were urged in the earlier petition for the transfer of criminal cases, ‑ namely, that the Inspector‑General Police; .by resorting to these harassing methods was trying to secure the withdrawal of criminal cases against Spankeren. Learned counsel for the petitioners strenuously urged that these facts were sufficient to raise an inference of mala fides of the impugned orders. We have given our anxious consideration to this argument but in our view no such inference can be raised against the detaining authority which in this case is the District Magistrate and not the Inspector‑General of Police. There is no allegation, whatever, of any animus against the District Magistrate. Even as against the Inspector‑General, Police, the matter rests in allegation only; and it is beyond the scope of these proceedings to find out‑the truth or otherwise of these allegations During the course of the hearing, learned counsel for the petitioners requested that the District Magistrate be summoned for cross‑examination to elicit material from him in support of the plea of mala fides. But that request was refused because the allegations of mala fides were entirely directed against the Inspector‑General, Police, concerning his social relations with Spankeren of which the District Magistrate could not possibly be aware.

12. We are, therefore, of the opinion that there is no sufficient material on the file to sustain the plea of mala fides of the two impugned orders.

13. As to the second ground of attack vide sections 114 of the Evidence Act, 1872, there is the initial presumption in favour of legality of the two impugned orders being "official acts" of the District Magistrate, Lahore, in exercise of the power delegated to him by the Provincial Government. However, this presumption is optional and even its probative force depends upon the circumstances of each particular case. Cf Harkishan Doss v. Emperor (A I R 1944 Lah. 33). Learned counsel for the State strongly based himself on the House of Lords case in Liversidge v. Anderson ((1941) 3 A E R 338) and contended that the decisive factor in the case is the "satisfaction" of the detaining authority which was amply proved by the two impugned orders had further by the sworn affidavits of the detaining authority. It was urged that these documents proved that the detaining authority had satisfied itself as to the necessity of the detention in these two cases and it is not open to the Court to substitute its own judgment for that of the detaining authority, when the question in essence concerns the sufficiency or otherwise of the reasons leading to the "satisfaction" of the detaining authority.

14. Learned counsel for the petitioners, on the other hand contended, and in our opinion quite rightly, that the real question in the present cases is not that of the sufficiency or otherwise of reasons justifying the detention orders ; the question really concerns the factum of "satisfaction" of the detaining authority which was a condition precedent for the valid exercise of power under rule 32 of the Defence of Pakistan‑ Rules. He stressed that there are a number of circumstances in these cases which showed beyond doubt, that what purported to be a record of "satisfaction" of the detaining authority was fictitious and colorable, insufficient to maintain the validity of the impugned orders. In support of this argument, he relied upon Emperor v. Despande (AIR 1946 P C 123), Abdul Ghafoor v. The Crown (P L D 1952 Lah. 624) and In re: Narahari Balji (A I R 1949 Mad. 438). Reliance was also placed on the recent decision of the Supreme Court in Abul A'la Maudoodi v. Government of West Pakistan (P L D 1964 S C 673), wherein the learned Chief Justice with reference to the exercise of subjec tive judgment of the Provincial Government for the purpose of section 16 of the Criminal Law Amendment Act, 1908, observed: " . . . . it is the duty of the Provincial Government to take into consideration all relevant facts and circumstances That imports the exercise of an honest judgment as to the existence of conditions on which alone the opinion may be formed, consequent upon which, the opinion must be formed honestly, that the restriction is necessary . . . . ." These authorities in our opinion, lay a foundation for the consideration of circumstances which led to the purported "satisfaction" of the detaining authority in these cases, with a view to enquire into the genuineness or otherwise of the authority's satisfaction.

15. The most remarkable circumstance in both cases is the substance and the tenor of the two impugned orders themselves set out in the beginning: they are a mere mechanical reproduction of the powers of the Central Government in rule 32(1)(b) of the Rules. It would be straining one's credulity to a breaking point to suggest that both the detenus were at once so omnipotent so as to be able to act at the same time "in a manner prejudicial to the security, the public safety or interest or the Defence of Pakistan, the maintenance of public order, Pakistan's relations with any other power, the maintenance of essential supplies and services or efficient prosecution of the war". There is hardly any nexus between Pakistan's relation with a foreign power and maintenance of peaceful condition "in any part of Pakistan" or maintenance of essential supplies. The order, therefore, on the face of it verges on absurdity. Then there is no indication in the two orders and the affidavits filed in support thereof, as to how and in what manner are the two detenus engaged themselves in all these diverse prejudicial activities? Were they agents of some hostile foreign power or mere professional agitators with anti‑state propensities? The affidavits are just mute on the point. In these circumstances, the conclusion becomes inevitable that the purported "satisfaction" of the detaining authority was fictitious and colorable. It did not apply its mind with the care or circumspection commensurate with the gravity of the cases affecting the liberty of two citizens. There is thus no getting away from the impression that the District Magistrate's "satisfaction" was slovenly and sham. Another remarkable fact in the cases is, that the two impugned orders were made on the 19th September 1965 and both the detenus were arrested the same day at 4 p.m. There is nothing to suggest that they were conjointly engaged in the alleged prejudicial activities. The only known common factor between them is their association‑ with the affairs of the Westrex Co. East. This fits with the probabilities of the case canvassed on behalf of the two detenus all the more and throws further doubt on the genuineness of the District Magistrate's "satisfaction".

16. It is pertinent to observe that rule 32 of the Defence of Pakistan Rules, in terms empowers the Central Government to exercise the powers reserved therein. The District Magistrate, Lahore, acted in exercise of that power as delegate of the Central Government, at the lowest level the intermediate delegate being the Provincial Government. The presumption in favour of the validity of the orders of detention would have been much stronger if the impugned orders had been made by the Central or the Provincial Government. Indeed, Liversidge's case, relied upon by the learned State counsel makes such a distinction. The noble Lords were definitely impressed‑by the fact that the order of detention in that case was passed on the personal satisfaction of the Secretary of State for Home Affairs and not by any authority subordinate to him. The following observations in the speech of Viscount Mangham (which was the principal speech) is significant: " . it is to be noted that the person who is primarily entrusted with these most important duties is one of the principal Secretaries of State, and a member of Government answerable to Parliament for a proper discharge of the duties. . I do not think he is at all in the same position as for example a police constable."

17. Having given our careful consideration to the ambient circumstances, we have reached the conclusion that the orders of detention and the affidavits filed by the detaining authority fall far short of proving the real "satisfaction" of the detaining authority within the meaning of rule 32 of the Defence of Pakistan Rules, which is a sine qua non for any order under the rule.

18. Accordingly, we accept the two writ petitions, quash the orders of detention against the two detenus and direct that they shall be set at liberty forthwith. K.B. A. Petitions accepted.